EXIT STRATEGY

Posted in Rants on February 17th, 2016 by Ed

While we're on the Supreme Court and the dead pool, it wouldn't be the worst time to start thinking about a replacement strategy for Ruth Bader Ginsburg.

I know. I know. She's great. People love her. The internet loves her. But despite some evidence that she may be the Highlander, she isn't immortal. She's an 83 year old woman who has been diagnosed with and treated for colon and pancreatic cancers. Frankly it is nothing short of a miracle that she is alive. She must have a combination of unbelievable luck, freakish physical constitution, and the best medical care money can buy just to be alive and breathing right now. The five-year survival rate for a woman her age when diagnosed with pancreatic cancer is zero. Zero. And yet here she is.

She seems like the kind of person who will serve until she can no longer serve. In academia we call this the "feet first retirement plan." The kind where they carry you out of your office for a ride in a nice black car. It's not surprising. Her husband is dead and it's hard to imagine she wouldn't get bored sitting around waiting for The End without the job to keep her active. That said, she's also smart enough to understand her position on the Court and the politics of appointing replacements.

One off-the-wall strategy would be to retire now. Force the Senate's hand on voting for replacements and let her preferred ideology come out ahead in the long run. Subtracting Scalia (who gets it right 0% of the time) and Ginsburg (95%) and replacing them with two people who are 50 years old and will get it right 75% of the time but for the next 25 years is a win any way you look at it. Obama might not be able to appoint a replacement who matches RBG for progressive zeal, but he certainly could appoint two left-center types who would vote in the public interest far more often than not.

Alternatively, if the Democrats make gains in the Senate in 2016 and retain the White House – the first is almost certain, the second more likely than not right now – Ginsburg may want to start thinking of retiring before January 2019. She would be nearly 86 years old at the time. If the Democrats outperform expectations and manage to take control of the Senate in this year's election, this becomes a no-brainer. There will be nowhere to go from that point – Democratic president and Senate – but down in terms of the environment for her replacement to be named.

It's tempting to say it's her life, do as she pleases and be happy with it, but the reality is that her position affects 320,000,000 Americans directly and intimately. If she is as committed to her beliefs and ideology as she appears sincerely to be, it would be irresponsible not to think about the circumstances under which her successor would be appointed.